[Federal Register Volume 80, Number 205 (Friday, October 23, 2015)]
[Rules and Regulations]
[Pages 64361-64369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26476]


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DEPARTMENT OF ENERGY

48 CFR Parts 925, 952 and 970

RIN 1991-AB99


Acquisition Regulations: Export Control

AGENCY: Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) is adopting as final, with 
changes, a rule amending the Department of Energy Acquisition 
Regulation (DEAR) to add clauses regarding applicable export control 
requirements for DOE contracts. The rule recognizes contractor 
responsibilities to comply with all applicable export control laws and 
regulations in the performance of DOE contracts and prescribes Export 
Clauses to address these responsibilities.

DATES: Effective Date: November 23, 2015.
    Applicability Date: This final rule is applicable to solicitations 
issued on or after November 23, 2015.

FOR FURTHER INFORMATION CONTACT: Lawrence Butler, (202) 287-1945 or 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Executive Summary
    A. Purpose and Legal Authority
    B. Summary of Major Provisions
    1. Part 925--Foreign Acquisition.
    2. Part 952--Solicitation Provisions and Contract Clauses.
    3. Part 970--DOE Management and Operating Contracts.
II. Summary of Comments and Responses
III. Procedural Requirements
    A. Review Under Executive Orders 12866 and 13563
    B. Review Under Executive Order 12988
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act
    E. Review Under the National Environmental Policy Act
    F. Review Under Executive Order 13132
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 13211
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Review Under Executive Order 13609
    L. Approval by the Office of the Secretary of Energy

I. Executive Summary

A. Purpose and Legal Authority

    The purpose of this rulemaking is to add new DEAR Subparts 925.71 
and 970.2571 to clarify requirements concerning compliance with export 
control laws and regulations applicable in the performance of DOE 
contracts.

[[Page 64362]]

    Export control laws and regulations that may apply to a DOE 
contract include, but are not limited to: The Atomic Energy Act of 1954 
(42 U.S.C. 2011 et seq.), as amended; the Arms Export Control Act (22 
U.S.C. 2751 et seq.); the Export Administration Act of 1979 (50 U.S.C. 
app. 2401 et seq.), as continued under the International Emergency 
Economic Powers Act (Title II of Pub. L. 95-223, 91 Stat. 1626, October 
28, 1977); Trading with the Enemy Act (50 U.S.C. App. 1 et seq. as 
amended by the Foreign Assistance Act of 1961); Assistance to Foreign 
Atomic Energy Activities (10 Code of Federal Regulations (CFR) Part 
810); Export Administration Regulations (15 CFR parts 730 through 774); 
International Traffic in Arms Regulations (22 CFR parts 120 through 
130); Export and Import of Nuclear Equipment and Material (10 CFR part 
110); and regulations administered by the Office of Foreign Assets 
Control of the Department of the Treasury (31 CFR parts 500 through 
598).
    DOE provided summaries of these export control laws in section II 
of its proposed rule. See 78 FR 35195 (June 12, 2013).

B. Summary of Major Provisions

    DOE is amending the DEAR to add provisions similar to the 2013 
amendments to the Defense Federal Acquisition Regulation Supplement 
(DFARS) (DFARS 225, Foreign Acquisition, and DFARS 252, 78 FR 36108, 
June 17, 2013); DFARS 252, Foreign Acquisition, 78 FR 48331, August 8, 
2013; and to the DFARS Procedures, Guidance, and Information (PGI) 225 
``Foreign Acquisition'' (revised June 26, 2013).
1. Part 925--Foreign Acquisition
    Part 925 is amended by adding new section 925.71 to set forth 
requirements for contractors concerning compliance with U.S. export 
control laws and regulations.
    Points of contact and specific U.S. government agency requirements 
for export controls can be found as follows:
    Department of Commerce (DOC): http://www.bis.doc.gov/licensing/exportingbasics.htm
    Department of Energy, National Nuclear Security Administration, 
Office of Nonproliferation and International Security: http://nnsa.energy.gov/aboutus/ourprograms/nonproliferation/programoffices/officenonproliferationinternationalsecurity.
    Nuclear Regulatory Commission: http://www.nrc.gov/about-nrc/ip/export-import.html.
    Department of State: http://www.pmddtc.state.gov/about/key_personnel.html and http://www.pmddtc.state.gov/documents/ddtc_getting_started.pdf.
    Department of Treasury: http://www.treasury.gov/services/Pages/Foreign-Transaction-Licensing-and-Reporting.aspx.
    DOE contractors are responsible for complying with export control 
requirements applicable to their contracts as set forth in new DEAR 
Export Clauses. It is a contractor's responsibility to comply with all 
applicable export control laws and regulations. This responsibility 
exists independent of, and is not established or limited by, this DEAR 
rulemaking.
2. Part 952--Solicitation Provisions and Contract Clauses
    Part 952 is amended by adding new clause 952.225-71 to set forth 
requirements for DOE contractors concerning compliance with applicable 
export control laws and regulations.
    Points of contact and specific U.S. government agency requirements 
for export controls can be found as follows:
    Department of Commerce (DOC): http://www.bis.doc.gov/licensing/exportingbasics.htm
    Department of Energy, National Nuclear Security Administration, 
Office of Nonproliferation and International Security: http://nnsa.energy.gov/aboutus/ourprograms/nonproliferation/programoffices/officenonproliferationinternationalsecurity.
    Nuclear Regulatory Commission: http://www.nrc.gov/about-nrc/ip/export-import.html.
    Department of State: http://www.pmddtc.state.gov/about/key_personnel.html and http://www.pmddtc.state.gov/documents/ddtc_getting_started.pdf.
    Department of Treasury: http://www.treasury.gov/services/Pages/Foreign-Transaction-Licensing-and-Reporting.aspx.
    DOE contractors are responsible for complying with export control 
requirements applicable to their contracts as set forth in new DEAR 
Export Clauses. It is a contractor's responsibility to comply with all 
applicable export control laws and regulations. This responsibility 
exists independent of, and is not established or limited by, this DEAR 
rulemaking.
3. Part 970--DOE Management and Operating Contracts
    Subpart 970.25 is amended by adding new section 970.2571 to set 
forth requirements for management and operating contractors concerning 
compliance with applicable export control laws and regulations. Subpart 
970.52 is amended by adding new clause 970.5225-1 to set forth 
requirements for management and operating contractors concerning 
compliance with applicable export control laws and regulations.
    Points of contact and specific U.S. government agency requirements 
for U.S. export controls can be found as follows:
    Department of Commerce (DOC): http://www.bis.doc.gov/licensing/exportingbasics.htm.
    Department of Energy, National Nuclear Security Administration, 
Office of Nonproliferation and International Security: http://nnsa.energy.gov/aboutus/ourprograms/nonproliferation/programoffices/officenonproliferationinternationalsecurity.
    Nuclear Regulatory Commission: http://www.nrc.gov/about-nrc/ip/export-import.html.
    Department of State: http://www.pmddtc.state.gov/about/key_personnel.html and http://www.pmddtc.state.gov/documents/ddtc_getting_started.pdf.
    Department of Treasury: http://www.treasury.gov/services/Pages/Foreign-Transaction-Licensing-and-Reporting.aspx.
    DOE management and operating contractors are responsible for 
complying with export control requirements applicable to their 
contracts as set forth in new DEAR Export Clauses. It is the 
contractor's responsibility to comply with all applicable export 
control laws and regulations. This responsibility exists independent 
of, and is not established or limited by, this DEAR rulemaking.

II. Summary of Comments and Responses

    DOE published a notice of proposed rulemaking (NOPR) on June 12, 
2013 (78 FR 35195). The NOPR reflected the approach previously taken by 
the Department of Defense (DoD) in the Defense Acquisition Regulations 
Supplement (DFARS) to address requirements for complying with export 
control laws and regulations when performing DoD contracts. DOE has 
received recommendations from the General Accounting Office and the DOE 
Inspector General to modify the DEAR for the same purpose. DOE received 
comments from 15 organizations in response to the NOPR. In addition, 
within days of publication of the NOPR, the DoD revised the DFARS to 
address issues similar to those reflected in comments received on the 
NOPR and provided guidance relating to the

[[Page 64363]]

release of fundamental research information. This final rule reflects 
the approach taken by the DoD on June 17, 2013, to changes to sections 
225.79 and 252.225-7048 of the DFARS (Foreign Acquisition, 78 FR 
36108), and to changes to Part 225 of the DFARS PGI--225.79 (Foreign 
Acquisition, Export Control). This NOPR also reflects DoD guidance in 
78 FR 48331, August 8, 2013, related to the release of research 
information that may be export controlled.
    The following paragraphs describe the changes included in this 
final rule as a result of those comments and provide DOE's response to 
the comments received.

Summary of Changes to the NOPR

    (a) All notification and reporting requirements have been removed.
    (b) The requirement for contractors to comply with DOE directives 
``in effect on the date of the contract award'' has been removed.
    (c) References to ``transfers'' have been removed.
    (d) References to specific DOE Orders have been removed.
    (e) The Export Restriction Notice has been removed from the Export 
Clauses.
    (f) The phrase ``subject to export controls'' has been removed from 
the Export Clauses.
    (g) All listings of U.S. export control laws and regulations are 
preceded by, ``include, but are not limited to:''
    (h) All references to ``export-controlled items'' and ``export 
control of items'' have been removed. The rule addresses ``compliance 
with export control laws and regulations'' and does not attempt to 
define what is and is not export controlled.
    Discussion of comments and responses.
    1. Comment: Six respondents claimed that export control laws exist 
and already apply to U.S. persons, regardless of whether a contractor 
represents to DOE that it is complying with applicable export laws.
    Response: As stated in the NOPR, export compliance responsibilities 
exist independent of and are not established or limited by the proposed 
rule. It is customary practice for laws and regulations applicable to 
DOE contracts to be listed in the contracts. In addition, DOE is 
requiring the new Export Clauses to be added to all applicable 
contracts. Listing applicable export laws and regulations in the Export 
Clauses will help ensure that contractors are aware of their 
responsibilities, emphasize the importance to DOE of contractor 
compliance with such laws and regulations, and minimize the risk of 
non-compliance with U.S. laws and regulations that could have major 
programmatic and financial impacts on DOE and contractors. No change 
was made to the text as a result of this comment.
    2. Comment: Six respondents claimed that the rule encroaches on the 
export authority of other U.S. export licensing authorities.
    Response: The rule does not affect the export authority of any U.S. 
Government agency. The purpose of the rule is to direct DOE contractors 
to seek guidance from and to communicate with export licensing officers 
at export licensing agencies and not to ask DOE Contracting Officers 
for assistance in complying with export control requirements. The rule 
provides explicit instructions to DOE Contracting Officers, if asked by 
a DOE contractor to provide export assistance, to direct contractors to 
applicable export laws and regulations and to the agencies 
administering them. The final rule makes it clear that DOE does not 
have an export compliance officer overseeing DOE contractor export 
activities, and that contractors are responsible for compliance with 
export controls. No change was made to the text as a result of this 
comment.
    3. Comment: Four respondents claimed the proposed rule has existing 
or potential inconsistencies with export control authorities.
    Response: As noted above, the purpose of the rule is to direct DOE 
contractors to seek guidance from and to communicate with export 
licensing officers at export licensing agencies and not to ask for 
export control compliance assistance from DOE Contracting Officers. The 
final rule has been revised to remove reporting and marking 
requirements, as well as language cited by one respondent as 
potentially inconsistent with other authorities.
    4. Comment: One respondent expressed concern as to how differences 
of opinion on the applicability of export control requirements between 
agencies responsible for administering the laws and the DOE Contracting 
Officer would be resolved.
    Response: The rule makes clear that DOE Contracting Officers do not 
make any decisions regarding the applicability of export control laws 
or regulations. The appropriate licensing agency determines whether 
export control requirements apply. It is a contractor's responsibility 
to adhere to all relevant export control laws and regulations. No 
change was made to the text as a result of this comment.
    5. Comment: One respondent claimed that DOE is potentially setting 
up a conflict for a contractor between complying with changes in export 
laws and regulations that are not yet changed in its contract clause.
    Response: The listing of export control laws and regulations in the 
Export Clauses in the final rule are preceded by ``include, but are not 
limited to:''. Any changes in U.S. export laws or regulations would 
apply to a contractor because the Export Clauses require compliance 
with all applicable export control laws and regulations. No change was 
made to the text as a result of this comment.
    6. Comment: Two respondents alleged that the proposed rule is 
inconsistent with the Export Control Reform Initiative.
    Response: The final rule is consistent with the Export Control 
Reform Initiative (ECRI). The purpose of this rule is to simplify the 
export process for DOE contractors, by directing them to the proper 
export licensing authorities. Reporting requirements have been removed 
from the final rule.
    7. Comment: Three respondents claimed that the proposed rule is 
redundant to DEAR 970.5204-2 Laws, Regulations and DOE Directives, 
because that clause adequately covers compliance with export laws and 
regulations.
    Response: The rule clarifies DOE contractor and Contracting Officer 
responsibilities regarding export controls not clearly stated in any 
other law or regulation. The Export Clauses clarify that DOE 
contractors are to contact appropriate export licensing agencies and 
not DOE Contracting Officers with questions regarding export control 
compliance. The Export Clauses direct DOE Contracting Officers to 
address contractor export control questions by directing them to 
relevant export control laws and regulations and licensing agencies. No 
change was made to the text as a result of this comment.
    8. Comment: One respondent questioned the requirement for 
contractors to comply with DOE directives ``in effect on the date of 
the contract award,'' as individual DOE contracts specify applicable 
DOE directives for each DOE contract.
    Response: DOE acknowledges that contracts specify applicable DOE 
directives. This language has been removed from the final rule.
    9. Comment: Two respondents claimed that DOE already has adequate 
contractual enforcement tools.
    Response: The purpose of the rule is not to provide additional 
enforcement tools. This rule is needed to clarify DOE contractor and 
Contracting Officer export control responsibilities not

[[Page 64364]]

clearly stated in any other law or regulation. No change was made to 
the text as a result of this comment.
    10. Comment: Six respondents claimed that export control 
requirements are not needed in the DEAR and that the Federal 
Acquisition Regulation (FAR) limits agency acquisition regulations to 
those necessary to implement FAR policies and procedures.
    Response: The final rule provides necessary policies and procedures 
not included in the FAR. It clarifies that DOE contractors are to 
consult appropriate export licensing agencies and not DOE Contracting 
Officers with questions regarding export compliance. The final rule 
directs DOE Contracting Officers to handle export control questions 
posed by contractors by directing the contractors to the relevant 
export licensing agencies. This rule is needed to clarify DOE 
contractor and DOE Contracting Officer responsibilities that are not 
clearly stated in any other law or regulation. No change was made to 
the text as a result of this comment.
    11. Comment: Six respondents claimed that the proposed rule exceeds 
the stated purpose of the rule, which is to amend the DEAR for 
consistency with a 2010 amendment to the DFARS. They said that the 
proposed rule is not consistent with the revised DFARS clauses.
    Response: The final rule reflects the approach taken in the June 
17, 2013, changes to 225.79 and 252.225-7048 of the DFARS (Foreign 
Acquisition, 78 FR 36108) and to the June 17, 2013 changes to Part 
225.79 of the DFARS PGI-225 (Foreign Acquisition). No change was made 
to the text as a result of this comment.
    12. Comment: Three respondents claimed that the proposed rule is 
ineffective as a way to respond to 2004 and 2007 DOE Inspector General 
(IG) and 2011 Government Accountability Office (GAO) reports on DOE 
contractor non-compliance with export laws.
    Response: The rule responds to DOE IG and GAO recommendations in 
the cited reports for DOE to provide specific export control guidance 
to DOE contractors. In particular, the 2007 DOE IG report recommended 
that DOE ``ensure that export control guidance is disseminated and 
implemented throughout the complex.'' To implement that recommendation, 
the IG report stated that ``NNSA management should expedite action, 
such as issuing a directive or modifying the Department of Energy 
Acquisition Regulation (DEAR), to fully implement the open 
recommendation.'' The 2011 GAO report repeated its prior 
recommendations for DOE to provide guidance to its contractors. The 
proposed rule is in direct response to the DOE IG recommendation to 
modify the DEAR, as well as the recommendations in the GAO report. No 
change was made to the text as a result of this comment.
    13. Comment: Two respondents claimed that the proposed rule 
unfairly asks Contracting Officers to make export control decisions for 
which they are not trained. One respondent proposed rewording the 
requirement for Contracting Officers to insert the export control 
clause as follows: ``The Contracting Officer shall insert the clause at 
952.225-71, Compliance with export control laws, regulations and 
directives (Export Clause), in all solicitations and contracts.''
    Response: The purpose of the new rule is to set forth the 
responsibilities of DOE contractors and DOE Contracting Officers 
concerning contractor compliance with export-controlled activities. 
Contracting Officers are required to include the Export Clause at DEAR 
952.225-71 or DEAR 970.5225-1 in solicitations and contracts that would 
involve export-controlled activities. While the rule has been revised 
to be applicable to ``all solicitations and contracts,'' export control 
laws would not be applicable to solicitations and contracts that do not 
involve export-controlled activities. As noted above, the revised 
language is similar to the policy approach taken DoD.
    14. Comment: Nine respondents claimed that certain reporting 
requirements included in the Export Clauses would unduly burden DOE 
contractors because the requirement of a timely, written notification 
of export controls and compliance for DOE contracts would be an 
overbroad approach to ensuring export control compliance. Also, the 
requirement to flow down the reporting requirement would impose 
administrative and audit burdens on contractors.
    Response: The final rule removes the requirements for a contractor 
to notify the DOE Contracting Officer when the contract may require 
export activities and for a contractor to assure the DOE Contracting 
Officer of its ability to comply with U.S. export laws and regulations. 
The reporting and notification requirements in the proposed rule were 
not required by any law or regulation, or recommended by any auditors. 
The purpose of the Export Clauses is to clarify that DOE contractors 
should consult appropriate export licensing agencies, and not DOE 
Contracting Officers, with questions regarding compliance with export-
controlled activities. The reporting and notification requirements were 
removed from the rule to avoid any implication that DOE Contracting 
Officers have any export compliance responsibilities.
    15. Comment: Two respondents were concerned about the impact on 
small business subcontractors and universities.
    Response: U.S. export control laws and regulations already apply to 
activities conducted by small businesses and by universities that have 
DOE contracts, so there would be no substantive change regarding export 
control requirements applicable to these entities. No change was made 
to the text as a result of this comment.
    16. Comment: Three respondents claimed that the proposed rule is 
not consistent with National Security Decision Directive (NSDD) 189 
because ``products'' most often generated and disseminated while 
performing fundamental research are scientific findings excluded from 
export regulations under the ``Fundamental Research Exclusion'' set 
forth in NSDD-189 and the exclusion of fundamental research from export 
controls in EAR and ITAR provisions.
    Response: NSDD 189 establishes a national policy that, to the 
maximum extent possible, the products of fundamental research shall 
remain unrestricted. NSDD 189 provides that no restrictions may be 
placed upon the conduct or reporting of federally funded fundamental 
research that has not received national security classification, except 
as provided in applicable U.S. statutes. As a result, contracts 
confined to the performance of unclassified fundamental research 
generally do not involve any export-controlled activities. NSDD 189 
does not take precedence over statutes. As it clearly states in the 
directive, NSDD 189 does not exempt any research from statutes that 
apply to export control laws and regulations. In addition, NSDD 189 is 
focused on the products of fundamental research and does not exempt 
access to export-controlled technology used or generated during the 
conduct of fundamental research. The final rule therefore is consistent 
with NSDD-189 regarding fundamental research because it does not have 
an impact on the NSDD-189 exemption for fundamental research and it 
does not modify restrictions already imposed by U.S. export control 
laws and regulations on research.
    DFARS PGI-225.79 (revised June 17, 2013) and [the final rule on the 
release of fundamental research information in DFARS 252.204-7000 
(August 8, 2013) address release of fundamental research information]. 
Note that the revised

[[Page 64365]]

DFARS PGI-225 places reporting requirements on contractors who want to 
release information that they have determined to be the product of 
fundamental research. This final rule does not place any reporting 
requirements on the release of fundamental research by DOE contractors.
    17. Comment: Two respondents questioned the scope of the Export 
Restriction Notice requirement.
    Response: The Export Restriction Notice requirement has been 
removed from the final rule because requirements for the use of such a 
notice are defined in 41 CFR 109 and do not need to be restated in this 
rule.
    18. Comment: Three respondents recommended that DOE would be better 
served by providing educational materials to contractors to increase 
export compliance awareness.
    Response: The purpose of the new rule is to direct DOE contractors 
to seek guidance from and to communicate with export licensing officers 
at appropriate export licensing agencies, and not to ask for export 
control compliance assistance from DOE Contracting Officers. Compliance 
training offices of Department of Commerce, Department of State and 
other agencies provide appropriate training on their respective export 
regulations. No change was made to the text as a result of this 
comment.
    19. Comment: Two respondents believed that DOE may inadvertently 
assume liability because of requirements in the Export Clauses should a 
contractor be in non-compliance with export control requirements.
    Response: DOE will not assume any liability due to inclusion of the 
Export Clauses in contracts or for contractor noncompliance with export 
control requirements. No change was made to the text as a result of 
this comment.
    20. Comment: Eight respondents claimed that the proposed rule 
potentially increases DOE contractors' risk by specifically listing 
regulations in the contract. They also were concerned that contractors 
could be liable under the False Claims Act and other laws for their 
actions or for those of their subcontractors. If the contractor is not 
in compliance with export control regulations, it may also be subject 
to Qui Tam penalties, and the rule would make failure to comply with 
export regulations a contractual obligation. This liability may be 
assumed by the M&O contractor for all of its subcontractors, including 
lower-tier subcontractors.
    Response: The Export Clauses in the final rule do not require 
reporting or written assurances. Contractors will not assume new 
liabilities due to insertion of the Export Clauses in DOE contracts.
    21. Comment: One respondent claimed that the proposed rule 
potentially increases DOE contractors' risk by requiring the contractor 
to identify specific aspects of the contract governed by export laws.
    Response: For the reasons stated previously, reporting and written 
assurance requirements have been removed from the final rule.
    22. Comment: One respondent claimed that adoption of the proposed 
regulation would increase costs for DOE procurements.
    Response: For the reasons stated previously, reporting requirements 
and written assurances have been removed from the final rule. The only 
de minimis costs associated with the final rule are costs to add the 
Export Clauses to solicitations and contracts. No further change was 
made to the text as a result of this comment.
    23. Comment: One respondent believed that the rule affects 10 CFR 
part 810 procedures for contractors subject to that regulation.
    Response: The proposed rule does not affect implementation of 10 
CFR part 810 with respect to DOE program activities. No change was made 
to the text as a result of this comment.
    24. Comment: One respondent claimed that DOE Contracting Officers 
will be required to submit all DOE contracts to the Office of 
Nonproliferation and International Security (NIS) of the National 
Nuclear Security Administration for 10 CFR part 810 review.
    Response: The reporting requirements have been removed from the 
revised rule. The rule does not place any requirements on DOE 
Contracting Officers to submit contracts to the office now called the 
Office of Nonproliferation and Arms Control for 10 CFR part 810 review. 
No change was made to the text as a result of this comment.
    25. Comment: Two respondents asked that this rule to be pursued in 
conjunction with the revised 10 CFR part 810.
    Response: The final rule amending 10 CFR part 810 (part 810) was 
issued on February 23, 2015. 80 FR 9359 (Feb. 23, 2014). The purpose of 
that final rule and this final rule are different. Part 810 controls 
the export of unclassified nuclear technology and assistance, and is 
one of the export rules that may apply to contractors. It was revised 
to, among other things, reflect current global civil nuclear trade 
practices. The purpose of this rule final is to direct DOE contractors 
to seek guidance from and to communicate with export licensing officers 
at export licensing agencies regarding export rules such as 10 CFR part 
810. No change was made to the text as a result of this comment.
    26. Comment: Two respondents stated that the meaning of 
``transfer'' is not clear.
    Response: References to ``transfers'' have been removed from the 
final rule.
    27. Comment: One respondent stated that the list of items to be 
transferred that are subject to the Notice is ambiguous.
    Response: The Export Restriction Notice has been removed from the 
rule.
    28. Comment: One respondent pointed out that DOE cites obsolete and 
unavailable references with regard to DoD directives. For instance, DOE 
lists DOE Order 580.1A which directs the reader to follow requirements 
in a DoD Demilitarization Manual 4160.21-M-1, that was cancelled and 
replaced. In addition, the replacement (DoD 4160.28-M series) directs 
users to obtain disposal guidance for ITAR items from Web sites that 
are available only to DoD components or those with .mil email 
addresses.
    Response: References to specific DOE Orders in the rule have been 
removed. References in the NOPR were current at the time that it was 
published.
    29. Comment: Six respondents recommended that the rule more closely 
follow the DoD example in the revised DFARS.
    Response: The final rule has been revised consistent with June 17, 
2013, changes to sections 225.79 and 252.225-7048 of the DFARS and the 
DFARS PGI-225.
    30. Comment: One respondent disagreed with the implication in the 
Export Restriction Notice that all items are subject to export 
controls.
    Response: The Export Restriction Notice has been removed from the 
final rule. As noted above, the phrase ``subject to export controls'' 
has been removed from the Export Clauses.

III. Procedural Requirements

A. Review Under Executive Orders 12866 and 13563

    Today's regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993). 
Accordingly, this rule is not subject to review under the Executive 
Order by the Office of Information and Regulatory Affairs (OIRA) of the 
Office of Management and Budget (OMB).
    DOE has also reviewed this regulation pursuant to Executive Order 
13563,

[[Page 64366]]

issued on January 18, 2011 (76 FR 3281 (Jan. 21, 2011)). Executive 
Order 13563 is supplemental to, and explicitly reaffirms the 
principles, structures, and definitions governing, regulatory review 
established in Executive Order 12866. To the extent permitted by law, 
agencies are required by Executive Order 13563 to: (1) Propose or adopt 
a regulation only upon a reasoned determination that its benefits 
justify its costs (recognizing that some benefits and costs are 
difficult to quantify); (2) tailor regulations to impose the least 
burden on society, consistent with obtaining regulatory objectives, 
taking into account, among other things, and to the extent practicable, 
the costs of cumulative regulations; (3) select, in choosing among 
alternative regulatory approaches, those approaches that maximize net 
benefits (including potential economic, environmental, public health 
and safety, and other advantages; distributive impacts; and equity); 
(4) to the extent feasible, specify performance objectives, rather than 
specifying the behavior or manner of compliance that regulated entities 
must adopt; and (5) identify and assess available alternatives to 
direct regulation, including providing economic incentives to encourage 
the desired behavior, such as user fees or marketable permits, or 
providing information upon which choices can be made by the public.
    DOE emphasizes as well that Executive Order 13563 requires agencies 
to use the best available techniques to quantify anticipated present 
and future benefits and costs as accurately as possible. In its 
guidance, the Office of Information and Regulatory Affairs has 
emphasized that such techniques may include identifying changing future 
compliance costs that might result from technological innovation or 
anticipated behavioral changes. DOE believes that today's final rule is 
consistent with these principles, including the requirement that, to 
the extent permitted by law, agencies adopt a regulation only upon a 
reasoned determination that its benefits justify its costs and, in 
choosing among alternative regulatory approaches, those approaches 
maximize net benefits.

B. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction.
    With regard to the review required by section 3(a), section 3(b) of 
Executive Order 12988 specifically requires that Executive agencies 
make every reasonable effort to ensure that the regulation: (1) Clearly 
specifies the preemptive effect, if any; (2) clearly specifies any 
effect on existing Federal law or regulation; (3) provides a clear 
legal standard for affected conduct while promoting simplification and 
burden reduction; (4) specifies the retroactive effect, if any; (5) 
adequately defines key terms; and (6) addresses other important issues 
affecting clarity and general draftsmanship under any guidelines issued 
by the Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law; these proposed regulations meet the relevant 
standards of Executive Order 12988.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of a regulatory flexibility analysis for any rule that by 
law must be proposed for public comment, unless the agency certifies 
that the rule, if promulgated, will not have a significant economic 
impact on a substantial number of small entities.
    As required by Executive Order 13272, ``Proper Consideration of 
Small Entities in Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), 
DOE published procedures and policies on February 19, 2003, to ensure 
that the potential impacts of its rules on small entities are properly 
considered during the rulemaking process. 68 FR 7990 (February 19, 
2003), DOE has made its procedures and policies available on the Office 
of the General Counsel's Web site (http://energy.gov/gc/office-general-counsel).
    DOE certifies that this rule would not have a significant impact on 
a substantial number of small entities because the rule is intended 
only to recognize existing export control compliance obligations and to 
clarify the role of DOE and its contracting officers in relation to 
these requirements. The rule itself does not impose any new 
requirements on manufacturers. In addition, DOE notes that the 
reporting requirements referenced in the proposed rule have been 
eliminated from the final rule for the reasons discussed in response to 
the comments received on this issue. DOE transmitted this certification 
to the Small Business Administration (SBA) as required by 5 U.S.C. 
605(b).

D. Review Under the Paperwork Reduction Act

    This final rule does not impose a collection of information 
requirement subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. DOE's procurement reporting and recordkeeping burdens have been 
approved under OMB Control No. 1910-4100.

E. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this final rule falls into a 
class of actions which would not individually or cumulatively have 
significant impact on the human environment, as determined by DOE's 
regulations (10 CFR part 1021, subpart D) implementing the National 
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.). 
Specifically, this final rule is categorically excluded from NEPA 
review because the amendments to the DEAR are strictly procedural 
(categorical exclusion A6). Therefore, this final rule does not require 
an environmental impact statement or environmental assessment pursuant 
to NEPA.

F. Review Under Executive Order 13132

    Executive Order 13132, 64 FR 43255 (August 4, 1999), imposes 
certain requirements on agencies formulating and implementing policies 
or regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. DOE has examined today's rule and has 
determined that it does not preempt State law and does not have a 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. No further 
action is required by Executive Order 13132.

G. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally

[[Page 64367]]

requires a Federal agency to perform a detailed assessment of costs and 
benefits of any rule imposing a Federal Mandate with costs to State, 
local or tribal governments, or to the private sector, of $100 million 
or more. This rulemaking does not impose a Federal mandate on State, 
local or tribal governments or on the private sector.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a 
Family Policymaking Assessment for any rule or policy that may affect 
family well being. This rule will have no impact on family well-being. 
Accordingly, DOE has concluded that it is not necessary to prepare a 
Family Policymaking Assessment.

I. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'', 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to the 
Office of Information and Regulatory Affairs (OIRA), Office of 
Management and Budget, a Statement of Energy Effects for any 
significant energy action. A ``significant energy action'' is defined 
as any action by an agency that promulgates or is expected to lead to 
promulgation of a final rule, and that: (1) Is a significant regulatory 
action under Executive Order 12866, or any successor order; and (2) is 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy, or (3) is designated by the 
Administrator of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution and use. 
Today's rule is not a significant energy action. Accordingly, DOE has 
not prepared a Statement of Energy Effects.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516, note) provides for agencies to review most disseminations 
of information to the public under implementing guidelines established 
by each agency pursuant to general guidelines issued by OMB. OMB's 
guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's 
guidelines were published at 67 FR 62446 (October 7, 2002). DOE has 
reviewed today's notice under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

K. Review Under Executive Order 13609

    Executive Order 13609 of May 1, 2012, ``Promoting International 
Regulatory Cooperation,'' requires that, to the extent permitted by law 
and consistent with the principles and requirements of Executive Order 
13563 and Executive Order 12866, each Federal agency shall:
    (a) If required to submit a Regulatory Plan pursuant to Executive 
Order 12866, include in that plan a summary of its international 
regulatory cooperation activities that are reasonably anticipated to 
lead to significant regulations, with an explanation of how these 
activities advance the purposes of Executive Order 13563 and this 
order;
    (b) Ensure that significant regulations that the agency identifies 
as having significant international impacts are designated as such in 
the Unified Agenda of Federal Regulatory and Deregulatory Actions, on 
RegInfo.gov, and on Regulations.gov;
    (c) In selecting which regulations to include in its retrospective 
review plan, as required by Executive Order 13563, consider:
    (i) Reforms to existing significant regulations that address 
unnecessary differences in regulatory requirements between the United 
States and its major trading partners, consistent with section 1 of 
this order, when stakeholders provide adequate information to the 
agency establishing that the differences are unnecessary; and
    (ii) Such reforms in other circumstances as the agency deems 
appropriate; and
    (d) For significant regulations that the agency identifies as 
having significant international impacts, consider, to the extent 
feasible, appropriate, and consistent with law, any regulatory 
approaches by a foreign government that the United States has agreed to 
consider under a regulatory cooperation council work plan.
    DOE has reviewed this final rule under the provisions of Executive 
Order 13609 and determined that the rule complies with all requirements 
set forth in the order.

L. Approval by the Office of the Secretary of Energy

    The Office of the Secretary of Energy has approved issuance of this 
final rule.

M. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule prior to its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

List of Subjects in 48 CFR Parts 925, 952 and 970

    Government procurement.

    Issued in Washington, DC, on October 8, 2015.
Patrick Ferraro,
Director, Office of Acquisition Management, Department of Energy.

    For reasons set out in the preamble, the DOE is amending Chapter 9 
of Title 48 of the Code of Federal Regulations as set forth below.

PART 925--FOREIGN ACQUISITION

0
1. The authority citation for part 925 continues to read as follows:

    Authority: 42 U.S.C. 7101 et seq., and 50 U.S.C. 2401 et seq.


0
2. Subpart 925.71 is added to part 925 to read as follows:

Subpart 925.71--Export Control
Sec.
925.7100 Scope of subpart.
925.7101 Policy.
925.7102 Contract clause.

Subpart 925.71--Export Control


925.7100  Scope of subpart.

    This subpart implements Department of Energy (DOE) requirements for 
contractors concerning compliance with U.S. export control laws and 
regulations.


925.7101  Policy.

    (a) DOE and its contractors must comply with all applicable U.S. 
export control laws and regulations.
    (b) Export control laws and regulations include, but are not 
limited to, the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.), as 
amended; the Arms Export Control Act (22 U.S.C. 2751 et seq.); the 
Export Administration Act of 1979 (50 U.S.C. app. 2401 et seq.), as 
continued under the International Emergency Economic Powers Act (Title 
II of Pub. L. 95-223, 91 Stat. 1626, October 28, 1977; 50 U.S.C. 1701 
et seq.); Trading with the Enemy Act (50 U.S.C. App. 5(b), as amended 
by the Foreign Assistance Act

[[Page 64368]]

of 1961); Assistance to Foreign Atomic Energy Activities (Title 10 of 
the Code of Federal Regulations (CFR) Part 810); Export Administration 
Regulations (15 CFR parts 730 through 774); International Traffic in 
Arms Regulations (22 CFR parts 120 through 130); Export and Import of 
Nuclear Equipment and Material (10 CFR part 110); and regulations 
administered by the Office of Foreign Assets Control of the Department 
of the Treasury (31 CFR parts 500 through 598).
    (c) Contractors seeking guidance on how to comply with export 
control laws and regulations should review the illustrative list of 
laws and regulations set forth in Clause 952.225-71. Contractors also 
may contact the agencies responsible for administration of export laws 
or regulations applicable to a particular export (e.g., Departments of 
State, Commerce, Treasury and Energy, or the Nuclear Regulatory 
Commission).
    (d) DOE Contracting Officers will not answer contractor questions 
regarding how to comply with U.S. export laws and regulations. 
Contracting Officers should direct contractors to the export laws, 
regulations, and agencies cited in the Export Clause at section 
952.225-71 of this subpart.
    (e) It is the contractor's responsibility to comply with all 
applicable export control laws and regulations. This responsibility 
exists independent of, and is not established or limited by, this 
subpart.


925.7102  Contract clause.

    The Contracting Officer shall insert the clause at 952.225-71, 
Compliance with Export Control Laws and Regulations (Export Clause), in 
all solicitations and contracts.

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. The authority citation for part 952 continues to read as follows:

    Authority: 42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101 
et seq.; 50 U.S.C. 2401 et seq.


0
4. Section 952.225-71 is added to read as follows:


952.225-71  Compliance with export control laws and regulations (Export 
Clause)

    As prescribed in 925.7102, use the following clause:

COMPLIANCE WITH EXPORT CONTROL LAWS AND REGULATIONS (NOV 2015)

    (a) The Contractor shall comply with all applicable export 
control laws and regulations.
    (b) The Contractor's responsibility to comply with all 
applicable export control laws and regulations exists independent 
of, and is not established or limited by, the information provided 
by this clause.
    (c) Nothing in the terms of this contract adds to, changes, 
supersedes, or waives any of the requirements of applicable Federal 
laws, Executive Orders, and regulations, including but not limited 
to--
    (1) The Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.), as 
amended;
    (2) The Arms Export Control Act (22 U.S.C. 2751 et seq.);
    (3) The Export Administration Act of 1979 (50 U.S.C. app. 2401 
et seq.), as continued under the International Emergency Economic 
Powers Act (Title II of Pub. L. 95-223, 91 Stat. 1626, October 28, 
1977; 50 U.S.C. 1701 et seq.);
    (4) Trading with the Enemy Act (50 U.S.C. App. 5(b), as amended 
by the Foreign Assistance Act of 1961);
    (5) Assistance to Foreign Atomic Energy Activities (10 CFR part 
810);
    (6) Export and Import of Nuclear Equipment and Material (10 CFR 
part 110);
    (7) International Traffic in Arms Regulations (ITAR) (22 CFR 
parts 120 through 130);
    (8) Export Administration Regulations (EAR) (15 CFR Parts730 
through 774); and
    (9) The regulations administered by the Office of Foreign Assets 
Control of the Department of the Treasury (31 CFR parts 500 through 
598).
    (d) In addition to the Federal laws and regulations cited above, 
National Security Decision Directive (NSDD) 189, National Policy on 
the Transfer of Scientific, Technical, and Engineering Information, 
establishes a national policy that, to the maximum extent possible, 
the products of fundamental research shall remain unrestricted. NSDD 
189 provides that no restrictions may be placed upon the conduct or 
reporting of federally funded fundamental research that has not 
received national security classification, except as provided in 
applicable U.S. statutes. As a result, contracts confined to the 
performance of unclassified fundamental research generally do not 
involve any export-controlled activities.
    NSDD 189 does not take precedence over statutes. NSDD 189 does 
not exempt any research from statutes that apply to export controls 
such as the Atomic Energy Act, as amended; the Arms Export Control 
Act; the Export Administration Act of 1979, as amended; or the U.S. 
International Emergency Economic Powers Act, or regulations that 
implement parts of those statutes (e.g., the ITAR, the EAR, 10 CFR 
part 110 and 10 CFR part 810). Thus, if items (e.g., commodities, 
software or technologies) that are controlled by U.S. export control 
laws or regulations are used to conduct research or are generated as 
part of the research efforts, export control laws and regulations 
apply to the controlled items.
    (e) The Contractor shall include the substance of this clause, 
including this paragraph (e), in all solicitations and subcontracts.

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

0
5. The authority citation for part 970 continues to read as follows:

    Authority: 42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101 
et seq.; 50 U.S.C. 2401 et seq.


0
6. Subpart 970.25 is revised to read as follows:

Subpart 970.25--Foreign Acquisition
Sec.
970.2570 Buy American Act.
970.2570-1 Contract clause.
970.2571 Export control.
970.2571-1 Scope of subpart.
970.2571-2 Policy.
970.2571-3 Contract clause.

Subpart 970.25--Foreign Acquisition


970.2570  Buy American Act.


970.2570-1  Contract clause.

    Contracting officers shall insert the clauses at 48 CFR 52.225-1, 
Buy American Act--Supplies, and 48 CFR 52.225-9, Buy American Act--
Construction Materials, in management and operating contracts. The 
clause at 48 CFR 52.225-1 shall be modified in paragraph (d) of this 
section by substituting the word ``use'' for the word ``deliver.''


970.2571  Export control.


970.2571-1  Scope of subpart.

    This subpart implements DOE requirements for DOE management and 
operating contractors concerning compliance with U.S. export control 
laws and regulations.


970.2571-2  Policy.

    (a) DOE and its contractors must comply with all applicable export 
control laws and regulations.
    (b) Export control laws and regulations include, but are not 
limited to, the Atomic Energy Act of 1954, as amended; the Arms Export 
Control Act (22 U.S.C. 2751 et seq.); the Export Administration Act of 
1979 (50 U.S.C. app. 2401 et seq.), as continued under the 
International Emergency Economic Powers Act (Title II of Pub. L. 95-
223, 91 Stat. 1626, October 28, 1977; 50 U.S.C. 1701 et seq.); Trading 
with the Enemy Act (50 U.S.C. App. 5(b), as amended by the Foreign 
Assistance Act of 1961); Assistance to Foreign Atomic Energy Activities 
(Title 10 of the Code of Federal Regulations (CFR) Part 810);

[[Page 64369]]

Export Administration Regulations (15 CFR parts 730 through 774); 
International Traffic in Arms Regulations (22 CFR parts 120 through 
130); Export and Import of Nuclear Equipment and Material (10 CFR part 
110); and regulations administered by the Office of Foreign Assets 
Control of the Department of the Treasury (31 CFR parts 500 through 
598).
    (c) Contractors seeking guidance on how to comply with export 
control requirements should review the illustrative list of laws and 
regulations applicable to the export of unclassified information, 
materials, technology, equipment or software set forth in clause 
970.5225-1. Contractors also may contact the agencies responsible for 
administration of export laws and regulations applicable to a 
particular export (e.g., Departments of State, Commerce, Treasury and 
Energy, or the Nuclear Regulatory Commission).
    (d) The contracting officer will not answer any questions a 
contractor may ask regarding how to comply with export regulations. If 
asked, the contracting officer should direct the contractor to export 
regulations and agencies cited in the Export Clause at 970.5225-1.
    (e) It is the contractor's responsibility to comply with all 
applicable U.S. export control laws and regulations. This 
responsibility exists independent of, and is not established or limited 
by, this subpart.


970.2571-3  Contract clause.

    The Contracting Officer shall insert the clause at 970.5225-1, 
Compliance with Export Control Laws and Regulations (Export Clause), in 
all solicitations and contracts.

Subpart 970.52--Solicitation Provisions and Contract Clauses for 
Management and Operating Contracts

0
7. Section 970.5225-1 is added to read as follows:


970.5225-1  Compliance with export control laws and regulations (Export 
Clause).

    As prescribed in 970.2571-3, use the following clause:

COMPLIANCE WITH EXPORT CONTROL LAWS AND REGULATIONS (NOV 2015)

    (a) The Contractor shall comply with all applicable U.S. export 
control laws and regulations.
    (b) The Contractor's responsibility to comply with all 
applicable laws and regulations exists independent of, and is not 
established or limited by, the information provided by this clause.
    (c) Nothing in the terms of this contract adds to, changes, 
supersedes, or waives any of the requirements of applicable Federal 
laws, Executive Orders, and regulations, including but not limited 
to--
    (1) The Atomic Energy Act of 1954, as amended;
    (2) The Arms Export Control Act (22 U.S.C. 2751 et seq.);
    (3) The Export Administration Act of 1979 (50 U.S.C. app. 2401 
et seq.), as continued under the International Emergency Economic 
Powers Act (Title II of Pub. L. 95-223, 91 Stat. 1626, October 28, 
1977; 50 U.S.C. 1701 et seq.);
    (4) Trading with the Enemy Act (50 U.S.C. App. 5(b), as amended 
by the Foreign Assistance Act of 1961);
    (5) Assistance to Foreign Atomic Energy Activities (10 CFR part 
810);
    (6) Export and Import of Nuclear Equipment and Material (10 CFR 
part 110);
    (7) International Traffic in Arms Regulations (ITAR) (22 CFR 
parts 120 through 130);
    (8) Export Administration Regulations (EAR) (15 CFR parts 730 
through 774); and
    (9) Regulations administered by the Office of Foreign Assets 
Control (31 CFR parts 500 through 598).
    (d) In addition to the Federal laws and regulations cited above, 
National Security Decision Directive (NSDD) 189, National Policy on 
the Transfer of Scientific, Technical, and Engineering Information 
establishes a national policy that, to the maximum extent possible, 
the products of fundamental research shall remain unrestricted. NSDD 
189 provides that no restrictions may be placed upon the conduct or 
reporting of federally funded fundamental research that has not 
received national security classification, except as provided in 
applicable U.S. statutes. As a result, contracts confined to the 
performance of unclassified fundamental research generally do not 
involve any export-controlled activities.
    NSDD 189 does not take precedence over statutes. NSDD 189 does 
not exempt any research from statutes that apply to export controls 
such as the Atomic Energy Act, as amended; the Arms Export Control 
Act; the Export Administration Act of 1979, as amended; or the U.S. 
International Emergency Economic Powers Act; or the regulations that 
implement those statutes (e.g., the ITAR, the EAR, 10 CFR part 110 
and 10 CFR part 810). Thus, if items (e.g., commodities, software or 
technologies) that are controlled by U.S. export control laws or 
regulations are used to conduct research or are generated as part of 
the research efforts, the export control laws and regulations apply 
to the controlled items.
    (e) The Contractor shall include the substance of this clause, 
including this paragraph (e), in all solicitations and subcontracts.

[FR Doc. 2015-26476 Filed 10-22-15; 8:45 am]
 BILLING CODE 6450-01-P